The Firing Line Forums

Go Back   The Firing Line Forums > The Conference Center > Law and Civil Rights

Reply
 
Thread Tools Search this Thread
Old August 13, 2017, 10:15 AM   #1
OldMarksman
Staff
 
Join Date: June 8, 2008
Posts: 3,278
Before You Submit that Post....

A friendly reminder:

Everyone who posts here or anywhere else on the Internet should understand that such posts are permanent, and they may be subject to discovery in legal proceedings at any time in the future. Should any member ever find himself or herself involved in such proceedings, posts containing comments that could be interpreted unfavorably could prove damaging.

You do not want to post anything where it may be made available to plaintiffs and investigators, that you should more properly tell only to an attorney in confidence in a privileged legal communication.

For those who may not be well versed in the reasons behind this, some additional explanation my be helpful.

First, everyone should understand that if one posts in a public forum on the Internet for anyone in the world with Internet access to read, or when one sends a company email for that matter, one can have no expectation of privacy.

Second, electronic postings can be and have been traced back to the originator, authenticated, and used both to facilitate further investigations and as evidence. One's computer may be seized, or subpoenas may be issued to others. Also, investigators can use search engines as well as or better than anyone else.

There are two kinds of situations in which a statement made on the Internet or put in email or posted on one of the various social networks can come back to haunt the originator.

The first involves posts of the "this happened to me" genre. If an incident that could lead to an investigation and/or additional legal proceedings has occurred, anything said about it on the Internet could either be used as evidence or to lead investigators to other facts or information that could be used as evidence that could prove damaging to the originator. For that reason, it is very important to exercise caution in terms of what one posts.

This can apply to either criminal or civil proceedings or both.

It is important to understand that the risks involved may even apply in cases that have not yet been pursued by law enforcement. A statement such as "I drew my gun and told him to get off my property" may be all that is needed to start or provide additional evidence for an investigation that might otherwise have gone nowhere.

In case it is not understood by some, the fact that the investigation of an incident appears to have been "closed" does not mean that the actor is free of risk. A statement by an officer that one "did the right thing", or even a decision by a prosecutor or grand jury to not pursue charges, is not a guarantee against further action. For one thing, new persons may replace others. More importantly, however, new evidence can be brought to light, and a posting here or anywhere on the Internet may just be the thing to make that happen.

The second risk involves the possible use of a statement posted on the Internet before an incident has occurred.

One way that such messages may be used is to indicate state of mind.

In the event that a person becomes involved in an incident in which the evidence supporting justification is sparse or is contradicted in part by other evidence, or an inconsistency casts doubt upon the credibility of the actor, anything that might be used to indicate that the actor had been predisposed to violence or the threat of violence could prove very damaging indeed.

Statements such as "anyone on my property is fair game", "in my state the law allows me to shoot anyone who...", "if he gets away he might harm someone else", "shoot the loudest one", etc., to cite a few hypothetical examples, can be discovered and used in court years after they were made.

This is not just conjecture. For a real example, consider that in a highly publicized case the defendant, who was a firearms instructor, had used training materials containing words such as “always cheat; always win,” and a statement to the effect that one should treat every one else in a polite manner while simultaneously having a plan to kill them. These statements may serve with a proper effect in an instructional setting, but taken out of context, they can be and have been used with damaging effect in a trial setting.

A second, and perhaps more common, way that pre-existing messages may impact an investigation or trial involves the establishment of a prior relationship between the parties. That evidence could either be used to establish motive or, if an actor claiming self defense has denied that such a relationship existed, to raise questions about the actor's credibility.

There may be those who will consider this, or any other tactics used in a case in which an actor who has used deadly force and who believes his actions to have been justified, to be unfair or perhaps characterize such tactics as those of an "overzealous prosecutor". It is important to keep in mind three things: (1) an investigation and/or a subsequent trial will involve anything relevant that can be gathered after the event and nothing else, and such statements may well be relevant; (2) the fact that the actor considers himself to be an upstanding citizen who is therefore a "good guy" will have little bearing on the case; and very importantly, (3) if the totality of the evidence does indicate that a shooting was not justified under the law, we expect our prosecutors to obtain a conviction.

It is impossible to list everything that could be taken out of context and used against one in a criminal or civil proceeding. We can only urge the use of caution in posting.

Understand that this is not mere conjecture or untested theory, and that it applies to criminal and civil subjects that extend far beyond the realm of use of force incidents.
OldMarksman is online now  
Old August 13, 2017, 01:56 PM   #2
Frank Ettin
Staff
 
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 8,656
Quote:
Originally Posted by OldMarksman
Everyone who posts here or anywhere else on the Internet should understand that such posts are permanent, and they may be subject to discovery in legal proceedings at any time in the future. Should any member ever find himself or herself involved in such proceedings, posts containing comments that could be interpreted unfavorably could prove damaging....
And while speech may be free, it still has social and legal consequences. It can be evidence of motivation, predisposition, state of mind, intent, character, etc.

As outlined here by Massad Ayoob:
Quote:
...I know for a fact that we DO have the technology to pull things out of your hard drive that you thought were deleted. We DO have the right to ask you, under penalty of perjury, whether you post on any Internet forum, and under what name, and we DO have the power to subpoena any posts via your IP from the Internet hosts, who under law have no choice but to "give you up." Don't let the seeming anonymity of the Internet delude you: when things get serious, you won't be anonymous anymore....
He was trying to make the point, in general terms, that any notion you might have that you can't get caught for what you write over the Internet is hooey. Some folks would be very surprised by the amount of useful information the police and prosecutor can get from your computer and your Internet presence. Note that he mentions a subpoena. That is another form of compulsory process used to gather evidence. Or sometimes the police will need a search warrant, which they'll be likely to get; and sometimes they won't. But however they have to get it, if it's there they can and will get it.

The "take-home message" is that plaintiff lawyers, law enforcement and prosecutors know all about social media and have been learning to use it effectively in civil litigation, criminal investigations and prosecutions. See this article headlined "Bay Area prosecutors increasingly using social media posts in criminal cases" from the 16 August 2013 edition of the Contra Costa Times:
Quote:
PLEASANTON -- A teenage driver originally accused of vehicular manslaughter now faces a murder charge in the death of a bicyclist, partly because prosecutors say he bragged on Twitter about driving dangerously.

His case is part of a growing trend of social media posts being used as evidence against suspects, authorities said Friday.

....

As suspects feel compelled to post their misdeeds online for audiences to see, investigators have taken advantage, using the online quasi-confessions to bolster their cases, Bay Area prosecutors said.

In San Francisco, a cyclist in March fatally struck a 71-year-old pedestrian in a crosswalk after speeding through three red lights in the Castro District. Chris Bucchere, who eventually pleaded guilty to felony vehicular manslaughter, received a stiffer charge after he posted his explanation of the crash on a cycling group's website....
__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper
Frank Ettin is offline  
Old August 14, 2017, 08:57 AM   #3
ATN082268
Senior Member
 
Join Date: December 2, 2013
Posts: 562
Quote:
Originally Posted by OldMarksman
Everyone who posts here or anywhere else on the Internet should understand that such posts are permanent, and they may be subject to discovery in legal proceedings at any time in the future.
If anyone wasn't aware of this before Edward Snowden and the NSA incident, they should be aware of it now.
ATN082268 is offline  
Old August 14, 2017, 02:29 PM   #4
DaleA
Senior Member
 
Join Date: September 12, 2002
Location: Twin Cities, MN
Posts: 3,568
Good points...maybe this should be in the 'General' forum?
DaleA is offline  
Old August 14, 2017, 03:10 PM   #5
CalmerThanYou
Senior Member
 
Join Date: April 16, 2017
Posts: 147
I suppose it is all about interpretation.
One may say belonging to a gun forum at all could compromise the member as some sort of gun nut. On the other hand one could argue most of us are here to gain information adding to our knowledge of current laws and proper training for safe care of and operation of firearms.
Point well taken though by the author that all things interweb are part of a potential individual profile that could help or hinder your future.
CalmerThanYou is online now  
Old August 14, 2017, 04:00 PM   #6
Don P
Senior Member
 
Join Date: December 17, 2005
Location: Florida
Posts: 5,586
Quote:
I suppose it is all about interpretation
Prosecutors will gladly use your words against you depending on your post content. Conversation came up at the last competition match I was at, One of the shooters stated that if anyone was in his house without authorization he would shoot to kill no questions asked. My point as well as Oldmarksman point, say that person who made that statement posted that on this forum. Fast forward to it actually happens in his home and it comes to question was it a good shoot? Prosecutor doesn't think so he goes to jail and has to stand trail for murder. The search the web and find that post with his statement. It proves his state of mind before hand and IT WILL be used against him. As Massad has stated in his classes the castle doctrine does turn YOUR home into an execution chamber
__________________
NRA Life Member, NRA Range Safety Officer, NRA Certified Pistol Instructor,, USPSA NROI Range Officer,
ICORE Range Officer, ICORE Match Director
,MAG 40 Graduate
As you are, I once was, As I am, You will be.
Don P is offline  
Old August 14, 2017, 10:08 PM   #7
Evan Thomas
Staff
 
Join Date: July 7, 2008
Location: Upper midwest
Posts: 5,079
Quote:
Originally Posted by DaleA
Good points...maybe this should be in the 'General' forum?
I think L&CR is the right place for it, given that the topic is the legal implications of what one posts.
__________________
Never let anything mechanical know you're in a hurry.
Evan Thomas is offline  
Old Yesterday, 10:54 AM   #8
rickyrick
Senior Member
 
Join Date: March 15, 2010
Posts: 6,135
I think it's good advice, I've been slowly disconnecting from social media. Will eventually end my activities on TFL. Being a member here is taboo in some circles and it's never going to get better. The subject of guns never crosses my lips anymore. The anonymity of the internet has disappeared. Somehow Facebook and Twitter have become the final authority. I took down my U.S. Flag from my front yard last evening to never put it back out.
rickyrick is offline  
Old Yesterday, 12:14 PM   #9
ATN082268
Senior Member
 
Join Date: December 2, 2013
Posts: 562
Quote:
Originally Posted by rickyrick View Post
I think it's good advice, I've been slowly disconnecting from social media. Will eventually end my activities on TFL. Being a member here is taboo in some circles and it's never going to get better.
In general, it is probably a good idea to avoid politics in casual conversations. Bringing up political topics is frequently a good way to alienate people without getting anything constructive in return.


Quote:
Originally Posted by rickyrick View Post
The subject of guns never crosses my lips anymore. The anonymity of the internet has disappeared.
I'm not convinced there was ever much in the way of anonymity on the internet unless you always took effective measures to cover your tracks. Personally I don't see owning guns any different than, say someone who owns cars, stamps or anything else. If your friends freak out because you collect guns instead of shoes or whatever, then I'd get new friends, not just because of that one issue but due to their general mindset.

Quote:
Originally Posted by rickyrick View Post
Somehow Facebook and Twitter have become the final authority. I took down my U.S. Flag from my front yard last evening to never put it back out.
Is that because of some Homeowner's association/ government rule or because a lot of people in your area shun the American flag?
ATN082268 is offline  
Old Yesterday, 12:53 PM   #10
ShootistPRS
Senior Member
 
Join Date: January 3, 2017
Posts: 1,284
The problem with using a conversation from a forum or facebook or other form of internet posting is that people don't often portray themselves as they truly are. There is a psychological name for this but I don't recall what it is. There are no "internal governors" on the internet and no repercussions. One can be whomever they wish in any given conversation. What they say or do on the internet has no real bearing on their actions in their real lives where there are responsibilities and discipline that occur because of ones actions.
I agree that a prosecutor might use it in court but the defense could just as easily show that it has no bearing in real life. People pretend to be members of the opposite gender, a younger or older age, and as having served in the military when they never did. The internet is a play land where real people rarely meet.
ShootistPRS is offline  
Old Yesterday, 04:28 PM   #11
carguychris
Senior Member
 
Join Date: October 20, 2007
Location: Richardson, TX
Posts: 7,174
Quote:
Originally Posted by ShootistPRS
The problem with using a conversation from a forum or facebook or other form of internet posting is that people don't often portray themselves as they truly are.
Such behavior is an immutable facet of human nature. All human discourse is colored by the possibility that the speaker or writer may be lying, exaggerating, omitting vital information, or otherwise bending the truth. Dealing with this possibility is an integral part of what courts do and it always has been.

The Interwebz may have enhanced the speed and ease with which someone can mislead others about who he really is and what he really thinks, but it hasn't fundamentally changed the way humans interact, nor how the courts view those interactions.
Quote:
Originally Posted by ShootistPRS
What they say or do on the internet has no real bearing on their actions in their real lives where there are responsibilities and discipline that occur because of ones actions.
Yes it does. Numerous crimes are dependent upon intent. Since we don't have the technology to read minds (yet!), intent must be established based on the totality of the circumstances, which may well include any written or verbal statements made be the defendant, regardless of the form those statements took.

If the defendant made statements that later come back to bite him or her on the rear, well, that's the very nature of taking responsibility for one's actions. It's facile to assume that a court will somehow discount potentially incriminating statements simply because it was the Internet and "I was just kidding, everybody does it!"
Quote:
Originally Posted by ShootistPRS
I agree that a prosecutor might use it in court but the defense could just as easily show that it has no bearing in real life.
Perhaps, but that will depend upon the totality of the circumstances.
__________________
"Smokey, this is not 'Nam. This is bowling. There are rules... MARK IT ZERO!!" - Walter Sobchak

Last edited by carguychris; Yesterday at 04:45 PM. Reason: typo
carguychris is offline  
Old Yesterday, 04:43 PM   #12
Frank Ettin
Staff
 
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 8,656
Quote:
Originally Posted by ShootistPRS
The problem with using a conversation from a forum or facebook or other form of internet posting is that people don't often portray themselves as they truly are.....People pretend to be members of the opposite gender, a younger or older age, and as having served in the military when they never did. The internet is a play land where real people rarely meet.
People are always who they really are. One can't be anyone else. If one chooses to take advantage of the perceived anonymity of the Internet to portray himself as someone older or younger or prettier or uglier or of a different sex than he actually is, those choices reflect something of himself. They are the choices he makes when given the opportunity.

Quote:
Originally Posted by ShootistPRS
....a prosecutor might use it in court but the defense could just as easily show that it has no bearing in real life....
Of course it has a bearing on real life. It is real life. How you present yourself, even if you misrepresent yourself, to the world always says something about you. We are responsible for how we choose to present or misrepresent ourselves to the world, and the choices we make are expressions of who we are.
__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper

Last edited by Frank Ettin; Yesterday at 08:30 PM. Reason: Correct typo
Frank Ettin is offline  
Reply

Thread Tools Search this Thread
Search this Thread:

Advanced Search

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off

Forum Jump


All times are GMT -5. The time now is 08:40 PM.


Powered by vBulletin® Version 3.8.7
Copyright ©2000 - 2017, vBulletin Solutions, Inc.
This site and contents, including all posts, Copyright © 1998-2016 S.W.A.T. Magazine
Copyright Complaints: Please direct DMCA Takedown Notices to the registered agent: thefiringline.com
Contact Us
Page generated in 0.07311 seconds with 10 queries